Canada is one of the few countries in the world—China is
another—that has decriminalized abortion. In Canada, there are no
legislative or judicial restrictions whatsoever on abortion: When, where,
and under what circumstances abortions can be performed are all
unregulated. In sharp contrast, abortion is generally illegal in South
American and predominantly Catholic countries, as well as in African and
Muslim countries. And the countries that do allow legal abortions,
including most in Europe along with America, Australia, and Russia,
typically permit it only up to a certain time or make it subject to
circumstances such as risk to the woman.1
Department of Economic and Social Affairs Population Division.
Abortion Policies: A Global Review. New York: United Nations;
2001.
In what follows we will first explain how Canada came to
decriminalize abortion and then go on to assess that position from an
ethical point of view.
Canadian Law
Canada is a federation where the powers to make laws in various areas
were divided under the British North America Act of 1867 between the
provincial governments and the federal government. Under this division,
the federal government has exclusive jurisdiction over criminal law in
Canada, and provincial governments generally have the right to pass laws
in regard to healthcare.
Until 1969, abortion was a criminal act in Canada. In that year an
exception was provided by amending Section 251 of the Criminal Code to
permit abortions if they were performed in an accredited or approved
hospital and approved by a three-physician therapeutic abortion committee
from that hospital as necessary to protect the woman's life or
health. If an abortion was carried out without such approval, the woman
was liable for imprisonment for 2 years, and the person carrying it out
for imprisonment for life.
A challenge to Section 251 was heard by the Supreme Court of Canada in
1988 in the case of Regina v. Morgentaler.2
R. v. Morgentaler, [1988] 1 S.C.R.
30.
The majority of the judges found that section to be in
violation of Section 7 of the Canadian Charter of Rights on the ground
that it infringed a woman's right to “life, liberty and the
security of a person.” In particular, it interfered with the
“security of a person” because, as the Chief Justice put it:
“At the most basic physical and emotional level, every pregnant
woman is told by the section that she cannot submit to a generally safe
medical procedure that might be of clear benefit to her unless she meets
criteria entirely unrelated to her own priorities and aspirations.”
To this, Madame Justice Wilson added that it interfered with a
woman's right to liberty, given that it prevented her from making her
own choices, as well as her right to freedom of conscience, given that the
choice in question is a moral one.
The Court held that such an infringement would be acceptable if
“the principles of fundamental justice” were followed. But
here they were not, for those principles require that criminal defenses to
crimes not be illusory or almost illusory, and in the case of abortion
they were. Abortions could only be done in an “accredited or
approved hospital.” But many hospitals were neither, and many of
those that were did not perform abortions. The Court cited the Badgely
Report,3
Canada. Department of Justice.
Report of the Committee on the Operation of the Abortion Law.
Ottawa: Minister of Supply and Services Canada; 1977.
which found
that out of 1,348 civilian hospitals in Canada in 1976, only 559 met the
requirements of Section 251, and only 271 (20% of all the hospitals) had a
therapeutic abortion committee.
The Court did, however, say that the state can take a legitimate
interest in the fetus, and that protecting it would be “a perfectly
valid legislative objective.” But, it insisted, that is a matter for
an elected Parliament, not the appointed courts, to decide. This
invitation to rewrite Section 251 was accepted by the House of Commons in
1989, and after acrimonious debate, legislation was proposed that again
made abortion permissible only for therapeutic reasons, but which widened
the grounds to include the psychological health of the woman and only
required the approval of one doctor. This passed the House of Commons by a
vote of 140 to 131. Before it could become law, however, it had to pass
the Senate, and the Senate—ironically, an appointed
body—refused to pass it. The vote was an unprecedented tie—43
to 43—and under Senate rules, that meant defeat. The government of
the day then announced that it would not introduce any further abortion
legislation, a decision followed by subsequent governments.
The Supreme Court in Morgentaler did not rule on whether the
fetus had rights. In the next decade it considered that question in regard
to the Quebec Civil Code, the Quebec Charter of Human Rights and Freedoms
(the Quebec Charter), the common law as it applied in the other provinces,
and the criminal law of Canada.
On July 7, 1989, Chantel Daigle's ex-boyfriend, Guy Tremblay,
obtained an injunction from the Quebec Supreme Court prohibiting Ms.
Daigle from having an abortion on the basis that the fetus was entitled to
protection under Quebec law. The decision was upheld by the Quebec Court
of Appeal on July 20, and a further appeal was heard by all the members of
the Supreme Court of Canada on August 8.4
Tremblay v. Daigle, [1989] 2 S.C.R
530.
During that hearing, the Court was told that Ms. Daigle had
already obtained an abortion, but given the importance of the issue, the
Court nevertheless continued the hearing and at the end immediately
invalidated the injunction. In addition to an unanimous finding that
neither the Quebec Civil Code nor the Quebec Charter provided for fetal
legal rights, the Court found that in the common law provinces there was
no fetal right until birth. In referring to various Anglo-Canadian court
decisions, the Court said: “These courts have consistently reached
the conclusion that to enjoy rights, a fetus must be born alive.”
The Supreme Court of Canada further clarified what is meant by “born
alive” in a subsequent case,
5 R. v. Sullivan, Lemay, [1991] 1
S.C.R 489.
holding that to be a human being deserving of legal
protection, the child had to be in a “living state” when it
had “completely proceeded” out of “the body of its
mother.”
In all, the Supreme Court of Canada has consistently refused to
ascribe rights to the fetus or to sanction interference with women in
matters relating to the fetus. Parts of these judgments in the landmark
abortion cases of Morgentaler and Daigle read in
substance and tone like feminist tracts, as do passages of that
Court's judgments on related matters. For example, the Supreme Court
of Canada refused to permit forced obstetrical intervention to prevent a
woman from endangering her fetus.6
Winnipeg Child and Family Services (Northwest Area) v. G.
(D.F.), [1997] 3 S.C.R. 925.
After considering the
difficulties in legalizing the right to interfere with a woman's
autonomy based on lifestyle choices, the Court went on to say: “The
difficulties multiply when the lifestyle in question is that of a pregnant
woman whose liberty is intractably and inescapably bound to her unborn
child.” Likewise, the Supreme Court of Canada held that children
have no right to sue their mothers for injuries received during pregnancy,
commenting: “The imposition by courts of tort liability on mothers
for prenatal negligence would restrict a pregnant woman's activities,
reduce her autonomy to make decisions concerning her health and have a
negative impact upon her employment opportunities. It would have a
profound effect upon every woman who is pregnant or merely contemplating
pregnancy and upon Canadian society in general.”
7 Dobson (Litigation Guardian of) v. Dobson,
[1999] 2 S.C.R. 753.
Ethical Reflections
Canada's legal position on abortion thus originated not from any
societal decision, but from the courts striking down attempts to interfere
with the liberty of women. The longer Parliament does not step in and fill
the legal vacuum, however, the more that position becomes societally
chosen. The question is whether it is well chosen. We will now sketch why
we think it is.
It is hard to deny that a woman has some kind of right to control her
body. But it is not clear what kind of right that is. If it is absolute,
the question of the morality of abortion is settled, and Canada has
exactly the proper legal position. On the other hand, if a woman's
right to control her body is only a prima facie right, the morality and
consequent legality of abortion will be settled by whether there is any
consideration sufficient to cancel or restrict that right.
The most natural and common place to look for such a consideration is
in the rights-status of the fetus. If the fetus has a full right to life,
abortion will be permissible only in those circumstances in which an
innocent full-fledged human being can be killed, that is, very seldom, and
a woman's right to control her body would not generally if ever
prevail in such a conflict. If it has a partial right, abortions will be
permissible or not, depending on the strength of that right and the reason
a woman has for wanting an abortion. Can either of these views be
defended?
There are only four possible positions one can hold on the
rights-status of the fetus: (1) The fetus lacks a right to life up to some
point in its development—what point is a matter of dispute among
those who hold this view—but gains a full right at that point (the
middle theory); (2) a right to life begins to phase in at some point of
fetal development, starting as a weak right and growing in strength as the
fetus develops (the gradualist theory); (3) the fetus has a full right to
life from the point of conception onward (the conservative theory); (4)
the fetus does not have any right to life at any time in its development
(the liberal theory).8
Classic papers on
these positions are conveniently collected in Feinberg J, ed. The
Problem of Abortion. Belmont, Calif.: Wadsworth; 1984.
All these theories are beset by well-known difficulties. The middle
theory is faced with the problem that, because there is no sharp
discontinuity anywhere in fetal development, any point at which the line
is drawn will be arbitrary. The gradualist theory has the same problem of
when to start ascribing a right, and also the problem of giving
operational significance to the development of that right, that is,
identifying at what stages what reasons are necessary and sufficient to
justify abortion. Conservatives are charged with being committed to
opposing contraception and celibacy, for the only thing that could make it
wrong to kill the zygote is that we thereby prevent a full-fledged human
being from coming into existence, and those practices do the same. And
liberals are accused of having to endorse infanticide, for there is
nothing that a late-term fetus lacks that a newborn infant has.9
A helpful review of criticisms is Glover J.
Causing Death and Saving Lives. Harmondsworth Middlesex, England:
Penguin Books, 1979;Ch. 9:119–28.
These are not, of course, decisive objections to the theories against
which they are directed. Indeed, they just start the complicated series of
objections and replies that characterizes the debate on the status of the
fetus. But that series does not end with any clear victor, and this puts
those who want to decriminalize abortion in a strong position. For the
absence of a satisfactory defense of fetal rights undercuts the most
powerful reason one could have to cancel or restrict a woman's right
to control her body, and thus those who want a restrictive abortion policy
must look to second-best considerations. Two stand out. First, one can try
to exploit the absence of a clear proof of the liberal theory, and argue
that either the fetus has a full right to life or it does not; we just
cannot say which at this time. But, given the importance of not killing
innocent beings with a full right to life, we should give it the benefit
of the doubt and legislate as if it had such a right, that is, as if the
conservative position were true.10
This view
is advocated by Woods J. Engineered Death: Abortion, Suicide,
Euthanasia and Senecide. Ottawa: University of Ottawa Press, 1978;Ch.
4, Sec. 5:57–60.
Second, one can contend that if late-term
abortions are allowed, there is a danger that this will lead to an
unhealthy lowering of psychological barriers against killing and respect
for life generally. Thus, we should legislate as if one of the middle
theories were true.
11 For a discussion, see
Glover J. Matters of life and death. New York Review of Books
1985;32(9):19–23.
But it is not obvious that the mere possibility that controversial
meta-ethical and moral views about the status of the fetus are true is
sufficient to justify visiting certain and substantial hardship on women.
And there is no firm evidence for the alleged callous-making effects of
abortions. We are thus still left without any clear reason to restrict a
woman's right to control her body in the matter of abortion. Absent
this, one can either draw the conclusion that there should be no legal
restrictions on abortion or appeal to nonrational considerations such as a
free vote in Parliament or a public referendum to determine what
restrictions should be put on it. Appeal to popular opinion, however, is
very unattractive. It is repugnant, especially in a country that prides
itself on freedom of religion and conscience, to let the religious or
personal moral views of some, however numerous or vociferous, control the
lives of others. Thus Canada's decriminalization of abortion seems
exactly right.
Decriminalization, however, does not mean access, and although there
is relatively good access to abortion in Canada, some nonlegal obstacles
exist. Abortions in Canada are provided free of charge—like any
other medically necessary service—in hospitals. But not all
hospitals perform abortions, and there are often long waiting lists. Some
provinces fund abortions in independent clinics. But not all do, and there
are not enough clinics—especially in rural areas—to meet the
demand.12
Until these barriers to access are removed, there will remain a
correctable inequality between men and women—indeed, between
women—in matters of reproduction, and an iteration of the argument
for decriminalizing abortion suggests they should be removed. Pro-choice
groups urge they should be; pro-life groups say the opposite; and this
battle is the current frontier of the abortion debate in Canada.
